Protection of Matrimonial Property Rights of Non-Divorcing Co-Wives in Tanzania

Abstract

In Maryam Mbaraka Saleh v. Abood Saleh Abood the Court of Appeal of Tanzania dismissed an application, by nondivorcing co-wife, for review of the court decision awarding forty percent share of the matrimonial property to a divorcing wife, in order to consider the interests of the remaining co-wife in the matrimonial property. One of the grounds for dismissal by the court was that the applicant was not a party to any of the previous proceedings. Logically, this decision obliges co-wives to be parties to divorce proceedings between their husbands and the divorcing wives for their interests to be considered during division of matrimonial property. Regrettably, the Law of Marriage Act of 1971 does not provide room for non-divorcing parties to be joined in divorce proceedings. Since only parties to the proceedings can be considered by courts in the division of marital property, the LMA currently offers no means for protection of non-divorcing co-wives’ share in marital assets. This situation fetters the efforts of protecting women’s matrimonial property rights, considering that almost twenty five percent of Tanzanian women live in polygamous marriages. This article proposes for introduction of a form community of property regime providing a serial division of property scheme under the LMA. This form of matrimonial property ownership is recommended in order to secure interests of non-divorcing co-wives and limit the court’s discretion in division of matrimonial property.